The
participation of developing countries in WTO dispute settlement system is a
topic of great importance in theory as well as in practice. In terms of the
practical importance, studying the past experiences of developing countries’
participation can help to understand the patterns of performance, identify the
problems in the existing system, and discover possible strategies to improve
their participation. At the same time, the topic is also of great theoretical
value, as such study can shed light into fundamental issues which are often dismissed
as being too academic to be relevant, including, for example, the desirability
of a highly legalistic approach to dispute settlement, the ultimate aim of the WTO
dispute settlement system, and the exact nature of the remedies provided under
the system, etc.

Since
the establishment of the WTO, a rich and ever-growing literature on the topic has
been developed by lawyers, economists, and international relations scholars. While
most of the existing literature tends to agree that the developing countries
have been under-represented in the WTO dispute settlement system, they disagree
in their diagnoses of the reasons for such deficiency and prescriptions for
solving the problem. In this regard, the paper by Bohanes and Garza is a
timely piece, because it not only provided one of the most extensive summaries
of the existing literature, but also did a great job busting many of the
stereotypical theories on the alleged constraints facing developing countries.

Drawing
from their rich experience in WTO litigation, Bohanes and Garza argued
convincingly that many of the factors actually played a much smaller role than
what people commonly believe. To start with, they pointed out that the claim of
underrepresentation of developing countries in WTO litigation itself is a myth,
because countries with bigger share in the global economy tend to be more
frequent participants in WTO disputes, and this is true for both developed and
developing countries alike. Of course, they acknowledged that the correlation
is far from perfect, but the link is strong enough to shatter the oft-repeated
stereotype that developing countries are underrepresented as a group.

Next,
the authors considered the commonly-cited constraints facing the developing
countries. Some of these are internal, such as the lack of legal capacity,
problems in domestic trade governance, insufficient retaliatory power, cultural
factor, etc. Others are external problems, such as the complexity of WTO
litigation, the interference of preferential arrangements, and the fear of
political retaliations. After an extensive and enthralling discussion, the
authors concluded that, in general, the impacts of external constraints have
been overly exaggerated. Instead, problems in domestic governance are the main
barriers preventing developing countries from effectively using the WTO dispute
settlement system.

Overall,
I find the authors’ analyses in each topic not only comprehensive by discussing
every major study on the subject from law, economics and political economy
scholars, but also full of insights on even the most nuanced subjects. To start
with, I was greatly impressed by the in-depth analysis on the different
methodologies for classifying developing countries at the beginning of the
paper. This is something lacking in many current studies, which just discuss
the participation of developing countries as if they were a homogenous group
without noting the many nuanced differences between different country groupings
as the authors have done. Also, when evaluating the proposal for a trust fund
on dispute settlement, the authors noted that even if the fund could encourage
developing countries to bring more cases, this might not necessarily be a good
thing as many such cases might be better left un-litigated due to their low
commercial value. Reflecting the deep grounding of the authors in trade policy
formulation, this word of caution is a sobering call to those who are
advocating more WTO litigations as an end in itself rather than as part of the
broader trade policy framework. Similarly, when discussing why developing
countries should choose the ACWL rather than law firms in their WTO disputes,
the authors noted that, as the second-most frequent complainant in the WTO, the
ACWL has a vast institutional experience, an advantage unmatched by any private
law firm. Again, unless one has sufficient experience in handling real WTO
disputes, it would be hard to appreciate the importance of institutional
experience. Another example is the discussion on political pressure, where
instead of relying on anecdotal evidence like most other studies have done, the
authors used the GDP size as a proxy to the political powers of the countries
and found that actually more than two-third of the developing country cases
were brought against countries with larger GDP and therefore politically more
powerful countries. This is a good example of the many innovative approaches
adopted in the article and reflects the ingenuity of the authors in combining
doctrinal analyses with empirical studies. I also thoroughly enjoyed the
refreshing discussions on the impact of preferential arrangements, where the
authors shrewdly noted that, while the tariff concessions under such agreements
might not be enforceable in WTO proceedings, the non-tariff barriers such as
TBT, SPS, or domestic tax measures remain fully subject to WTO law and potential
dispute settlement process. I think this is a point that has been missed out in
most of the discussions on preferential arrangements so far and should be kept
in mind by everyone who’s interested in the topic.

On
a few rare occasions, I find myself in slight disagreement with the authors.
For example, I am troubled by the inclusion of giant countries like Brazil,
India and China (BIC) in the discussion of developing countries’ participation
in general. As big traders and frequent litigants, their experiences are hardly
representative of that of typical developing countries and including them in
the study only distorts the overall picture. Moreover, as average developing
countries lack the enormous economic powers and widespread trade interests of
BIC countries, it is doubtful that the successful examples of BIC really offer
something useful to the other developing countries. For example, given their
limited resources, most developing countries would not be able to emulate the
examples of China and Brazil in building up the capacities in academia, law
firms and government. Of course, I am not saying that the authors fail to
recognize the BIC problem. Quite the contrary, they have correctly pointed out,
at the beginning of the article, that “grouping all developing countries into
one single category… papers over great differences”. Later, they also noted
that the top 5 and 10 developing country complainants accounts for 50% and 75%
of all developing country complaints, respectively. Moreover, they are not only
aware of the problem, but also well cognizant of the possible solutions. For
instance, they cited several ways to “differentiate between subsets of
developing countries to make analyses more meaningful”. They also did a case
study on South Africa to illustrate the common problems facing average
developing countries. Indeed, had the authors followed their own advice and
adopted either the categorization proposed by Horn, Johannesson and Mavroidis,
or the one used by the ACWL in their membership classification, their analyses
would have been more relevant and useful to average developing countries. It is
puzzling that the authors mentioned these methods without discussing how they
might be useful in the current study. Similarly, I remain unpersuaded by the
authors’ dismissal of the proposal by Nordström
and Shaffer to establish a “small claims procedure”. According to the authors, “it
is doubtful that developing WTO members would see benefit in rulings from a
procedure that would run the risk of being branded, by interest groups within the
respondent member, a ‘second-class’ process, thereby undermining its political
persuasiveness”. In my view, domestic interests groups rarely distinguish
between Panel and Appellate Body decisions in criticizing WTO cases. Both are
just WTO rulings to them and I doubt the rulings of a WTO small claims tribunal
will receive different treatment, for better or for worse. Also, while I agree
that some WTO Members might want to use certain WTO rulings to enhance their
political bargaining position, I doubt this is true of all cases in the WTO.
For some WTO Members, especially smaller ones, they might not be interested in
establishing favorable WTO jurisprudence on controversial issues at all, either
because the issue is well-settled with clear precedents, or because they just
want to solve the problem at hand.

In
addition, there are a few other issues which the authors could have taken a
closer look. For example, in discussing the impact of retaliation on
compliance, the authors argued that compliance mainly depends on getting
sufficient domestic political support, which retaliation provides little help. However,
if used well, retaliation or the threat of it could well mobilize domestic
interest groups and realign their positions to increase the possibility of
compliance. Interestingly, the authors seemed to acknowledge this point by
mentioning the US “carousel retaliation” example in the EU - Bananas III
dispute. Another well-known example is the proposed EU retaliation list in the
US – Steel Safeguards case, which affects several key states in US presidential
election by strategically choosing products such as Harley-Davidson motorcycle
(Wisconsin), textiles (Carolinas) and citrus products (Florida), which prompted
quick compliance by the US. Similarly, I find the authors’ discussion of
cultural factors to be too cursory. According to the authors, while cultural
traditions might play a role in deciding whether to use the WTO dispute
settlement at all, it fades into the
background once a country gains experience in the dispute settlement system. However,
if this were indeed the case, we wouldn’t see Latin American countries such as
Argentina and Chile joining the club of the most active litigants,
notwithstanding their low total GDP and shares in global trade. Instead, they
would have to switch places with a few Asian countries, especially Indonesia
and Malaysia.

Notwithstanding
the tiny blemishes mentioned above, I regard the paper as one of those rare
pieces which combines deep academic rigor with rich practical insights. In my
humble view, this is a must-read for WTO scholars and practitioners alike. In
particular, I would highly recommend it for trade officials from developing
countries. If they can all follow the highly topical and practical suggestions
in the paper, especially those regarding domestic governance issues, it wouldn’t
be long before we see the emergence of a new landscape in WTO dispute
settlement.

The
participation of developing countries in WTO dispute settlement system is a
topic of great importance in theory as well as in practice. In terms of the
practical importance, studying the past experiences of developing countries’
participation can help to understand the patterns of performance, identify the
problems in the existing system, and discover possible strategies to improve
their participation. At the same time, the topic is also of great theoretical
value, as such study can shed light into fundamental issues which are often dismissed
as being too academic to be relevant, including, for example, the desirability
of a highly legalistic approach to dispute settlement, the ultimate aim of the WTO
dispute settlement system, and the exact nature of the remedies provided under
the system, etc.

Since
the establishment of the WTO, a rich and ever-growing literature on the topic has
been developed by lawyers, economists, and international relations scholars. While
most of the existing literature tends to agree that the developing countries
have been under-represented in the WTO dispute settlement system, they disagree
in their diagnoses of the reasons for such deficiency and prescriptions for
solving the problem. In this regard, the paper by Bohanes and Garza is a
timely piece, because it not only provided one of the most extensive summaries
of the existing literature, but also did a great job busting many of the
stereotypical theories on the alleged constraints facing developing countries.

Drawing
from their rich experience in WTO litigation, Bohanes and Garza argued
convincingly that many of the factors actually played a much smaller role than
what people commonly believe. To start with, they pointed out that the claim of
underrepresentation of developing countries in WTO litigation itself is a myth,
because countries with bigger share in the global economy tend to be more
frequent participants in WTO disputes, and this is true for both developed and
developing countries alike. Of course, they acknowledged that the correlation
is far from perfect, but the link is strong enough to shatter the oft-repeated
stereotype that developing countries are underrepresented as a group.

Next,
the authors considered the commonly-cited constraints facing the developing
countries. Some of these are internal, such as the lack of legal capacity,
problems in domestic trade governance, insufficient retaliatory power, cultural
factor, etc. Others are external problems, such as the complexity of WTO
litigation, the interference of preferential arrangements, and the fear of
political retaliations. After an extensive and enthralling discussion, the
authors concluded that, in general, the impacts of external constraints have
been overly exaggerated. Instead, problems in domestic governance are the main
barriers preventing developing countries from effectively using the WTO dispute
settlement system.

Overall,
I find the authors’ analyses in each topic not only comprehensive by discussing
every major study on the subject from law, economics and political economy
scholars, but also full of insights on even the most nuanced subjects. To start
with, I was greatly impressed by the in-depth analysis on the different
methodologies for classifying developing countries at the beginning of the
paper. This is something lacking in many current studies, which just discuss
the participation of developing countries as if they were a homogenous group
without noting the many nuanced differences between different country groupings
as the authors have done. Also, when evaluating the proposal for a trust fund
on dispute settlement, the authors noted that even if the fund could encourage
developing countries to bring more cases, this might not necessarily be a good
thing as many such cases might be better left un-litigated due to their low
commercial value. Reflecting the deep grounding of the authors in trade policy
formulation, this word of caution is a sobering call to those who are
advocating more WTO litigations as an end in itself rather than as part of the
broader trade policy framework. Similarly, when discussing why developing
countries should choose the ACWL rather than law firms in their WTO disputes,
the authors noted that, as the second-most frequent complainant in the WTO, the
ACWL has a vast institutional experience, an advantage unmatched by any private
law firm. Again, unless one has sufficient experience in handling real WTO
disputes, it would be hard to appreciate the importance of institutional
experience. Another example is the discussion on political pressure, where
instead of relying on anecdotal evidence like most other studies have done, the
authors used the GDP size as a proxy to the political powers of the countries
and found that actually more than two-third of the developing country cases
were brought against countries with larger GDP and therefore politically more
powerful countries. This is a good example of the many innovative approaches
adopted in the article and reflects the ingenuity of the authors in combining
doctrinal analyses with empirical studies. I also thoroughly enjoyed the
refreshing discussions on the impact of preferential arrangements, where the
authors shrewdly noted that, while the tariff concessions under such agreements
might not be enforceable in WTO proceedings, the non-tariff barriers such as
TBT, SPS, or domestic tax measures remain fully subject to WTO law and potential
dispute settlement process. I think this is a point that has been missed out in
most of the discussions on preferential arrangements so far and should be kept
in mind by everyone who’s interested in the topic.

On
a few rare occasions, I find myself in slight disagreement with the authors.
For example, I am troubled by the inclusion of giant countries like Brazil,
India and China (BIC) in the discussion of developing countries’ participation
in general. As big traders and frequent litigants, their experiences are hardly
representative of that of typical developing countries and including them in
the study only distorts the overall picture. Moreover, as average developing
countries lack the enormous economic powers and widespread trade interests of
BIC countries, it is doubtful that the successful examples of BIC really offer
something useful to the other developing countries. For example, given their
limited resources, most developing countries would not be able to emulate the
examples of China and Brazil in building up the capacities in academia, law
firms and government. Of course, I am not saying that the authors fail to
recognize the BIC problem. Quite the contrary, they have correctly pointed out,
at the beginning of the article, that “grouping all developing countries into
one single category… papers over great differences”. Later, they also noted
that the top 5 and 10 developing country complainants accounts for 50% and 75%
of all developing country complaints, respectively. Moreover, they are not only
aware of the problem, but also well cognizant of the possible solutions. For
instance, they cited several ways to “differentiate between subsets of
developing countries to make analyses more meaningful”. They also did a case
study on South Africa to illustrate the common problems facing average
developing countries. Indeed, had the authors followed their own advice and
adopted either the categorization proposed by Horn, Johannesson and Mavroidis,
or the one used by the ACWL in their membership classification, their analyses
would have been more relevant and useful to average developing countries. It is
puzzling that the authors mentioned these methods without discussing how they
might be useful in the current study. Similarly, I remain unpersuaded by the
authors’ dismissal of the proposal by Nordström
and Shaffer to establish a “small claims procedure”. According to the authors, “it
is doubtful that developing WTO members would see benefit in rulings from a
procedure that would run the risk of being branded, by interest groups within the
respondent member, a ‘second-class’ process, thereby undermining its political
persuasiveness”. In my view, domestic interests groups rarely distinguish
between Panel and Appellate Body decisions in criticizing WTO cases. Both are
just WTO rulings to them and I doubt the rulings of a WTO small claims tribunal
will receive different treatment, for better or for worse. Also, while I agree
that some WTO Members might want to use certain WTO rulings to enhance their
political bargaining position, I doubt this is true of all cases in the WTO.
For some WTO Members, especially smaller ones, they might not be interested in
establishing favorable WTO jurisprudence on controversial issues at all, either
because the issue is well-settled with clear precedents, or because they just
want to solve the problem at hand.

In
addition, there are a few other issues which the authors could have taken a
closer look. For example, in discussing the impact of retaliation on
compliance, the authors argued that compliance mainly depends on getting
sufficient domestic political support, which retaliation provides little help. However,
if used well, retaliation or the threat of it could well mobilize domestic
interest groups and realign their positions to increase the possibility of
compliance. Interestingly, the authors seemed to acknowledge this point by
mentioning the US “carousel retaliation” example in the EU - Bananas III
dispute. Another well-known example is the proposed EU retaliation list in the
US – Steel Safeguards case, which affects several key states in US presidential
election by strategically choosing products such as Harley-Davidson motorcycle
(Wisconsin), textiles (Carolinas) and citrus products (Florida), which prompted
quick compliance by the US. Similarly, I find the authors’ discussion of
cultural factors to be too cursory. According to the authors, while cultural
traditions might play a role in deciding whether to use the WTO dispute
settlement at all, it fades into the
background once a country gains experience in the dispute settlement system. However,
if this were indeed the case, we wouldn’t see Latin American countries such as
Argentina and Chile joining the club of the most active litigants,
notwithstanding their low total GDP and shares in global trade. Instead, they
would have to switch places with a few Asian countries, especially Indonesia
and Malaysia.

Notwithstanding
the tiny blemishes mentioned above, I regard the paper as one of those rare
pieces which combines deep academic rigor with rich practical insights. In my
humble view, this is a must-read for WTO scholars and practitioners alike. In
particular, I would highly recommend it for trade officials from developing
countries. If they can all follow the highly topical and practical suggestions
in the paper, especially those regarding domestic governance issues, it wouldn’t
be long before we see the emergence of a new landscape in WTO dispute
settlement.